June 05, 2005

Washington State Ruling Expected 9 AM Monday; What Comes Next?

The trial judge in the Washington state gubernatorial contest trial has said he expects to rule from the bench Monday at 9 am (PDT). (You can find Howard Bashman's links to weekend coverage here and here.) There seems little question that the case, whatever the outcome, will be appealed to the Washington state supreme court.

How much weight will the trial judge's opinion have? First, it is likely to influence public opinion. Whoever wins before the trial judge will have momentum ("the trial judge has vindicated our position....") On the legal front, the most important aspect of the trial court's ruling will be his factual findings. Thus, the findings of the judge related to the extent of fraud, or the number of illegal votes cast, are likely to be issues that the the state Supreme Court would take as given on appeal.

But on legal questions, the review is likely to be de novo, without any regard to what the trial court finds. For example, early on in the case the trial judge rejected an equal protection argument under Bush v. Gore based on allegedly different treatment of provisional and other ballots across counties. This issue could well reemerge in the state supreme court. That court also likely won't defer on legal questions such as the standard for knowing when a vote is illegal, or on the question whether the "proportional deduction" standard for determining the number of illegal votes is a proper way to determine the number of illegal votes cast for a particular candidate.

Regardless of the outcome, this case surely helps to lower any resistance that losing candidates may have to challenge the result of close elections in court.